Document Type


Publication Date

Winter 2010


Delegated legislation, Separation of Powers, Nondelegation


Administrative Law | Constitutional Law | Law and Politics | Public Law and Legal Theory


This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than continue to use nondelegation as a stalking horse.

Publication Citation

Cynthia R. Farina, "Deconstructing Nondelegation", 33 Harvard Journal of Law & Public Policy (2010)